from the wow dept

As a whole bunch of folks have sent in a District Court judge in Nevada issued some rather stunning orders lately concerning websites that luxury brands company Chanel has argued "advertise, promote, offer for sale or sell" possibly counterfeit Chanel goods. The order is basically a more expansive private version of SOPA, in which the judge has let Chanel directly "seize" about 600 domains, as well as issued restraining orders and injunctions, including orders to Google, Bing, Yahoo, Facebook, Google+, and Twitter to "de-index and/or remove [the domain names] from any search results pages." Venkat Balasubramani covers the other wide-reaching aspects as well:

an injunction against the defendants prohibiting them from using any Chanel marks or selling any Chanel products;

an injunction against the top-level domain name registry, directing it to change the registrar of record for the domain names to GoDaddy (!);

an injunction telling GoDaddy to change the DNS data for the domain names so the domain names resolve to a site where a copy of the case documents are hosted (servingnotice.com/sdv/index.html);

authorization for Chanel to enter the domain names into "Google's Webmaster Tools" and cancel any redirection of the domain names;

Venkat also points out how crazy this whole thing is:

First, I did not get a clear sense that this is an enforcement action against a single defendant. If there's no credible allegation of a conspiracy or an arrangement between whomever is behind these domain names, it strikes me as problematic for Chanel to file a placeholder lawsuit and then add or remove defendants at its convenience.

Second, it was not entirely clear why the lawsuit was in Nevada. The domain names are not registered to a registrar that is based in Nevada, and there's no clear basis for in rem jurisdiction. It's possible that plaintiff picked this jurisdiction as a matter of convenience, but there's no apparent relationship between the alleged counterfeiting activities and the State of Nevada.

Then there's the matter that some of the court's relief is directed at a variety of entities that are not parties to the dispute (including the registrars, the registry, Facebook, Twitter, Google, etc.). I'm not sure how this court can direct a registry to change a domain name's registrar of record or Google to de-list a site, but the court does so anyway. This is probably the most problematic aspect of the court's orders. [Interesting that GoDaddy was chosen as the registrar that the domain names would be transferred to.]

Finally, there's no clear basis to authorize a transfer of a defendant's property pending resolution of a lawsuit to the plaintiff. (See Bosh v. Zavala.) I don't see this as particularly problematic in this case because Chanel is not looking to liquidate the domain names, but it certainly raises due process red flags, given that this is all done with minimal (or no) notice to defendants.

There are all sorts of issues with these rulings that appear to go way, way beyond what the law allows (even if SOPA were passed). And the fact that this includes sites that might only "promote" possibly counterfeit Chanel products? It sounds like many of the sites are entirely clear that they're offering replicas, meaning no likelihood of confusion being at issue. Furthermore, some of the order appears to also bar even the "promoting" of legitimate Chanel products. How is that reasonable?

Beyond that, the broad disappearing of these websites, ordering search engines and social networks to totally block their existence, despite the lack of an adversarial hearing, or any allowance for those search engines or social networks to have a say, seems immensely troubling. Why even bother with SOPA at all, when judges feel they can just order broad censorship based on one side's claims? These rulings are quite worrisome. One really surprising bit is that the judge, Kent Dawson, was one of the judges who smacked down Righthaven, so he at least understands how companies can abuse IP rights. It's surprising that he'd issue such a broad reaching order like this.

Missing from the ruling is any discussion of the Internet's global nature; the judge shows no awareness that the domains in question might not even be registered in this country, for instance, and his ban on search engine and social media indexing apparently extends to the entire world. (And, when applied to US-based companies like Twitter, apparently compels them to censor the links globally rather than only when accessed by people in the US.) Indeed, a cursory search through the list of offending domains turns up poshmoda.ws, a site registered in Germany. The German registrar has not yet complied with the US court order, though most other domain names on the list are .com or .net names and have been seized.

Who knows if anyone will even step up to appeal such broadly rulings (probably not), but they set a very scary precedent.

Anyone know where I can get a full text version of the list of web sites?

I have the URL to the pdf containing URL's to be delisted, I need a text version so I can post it on Google+. The pdf seems to be a scanned image. It will be a simple complaint about the over reach of this, and how SOPA will do far worse than. If it is taken down they will be removing an editorial about online censorship.

I would love to see Google ignore this

I think it was Teddy Roosevelt who once disagreed with Supreme Court decision and basically told them to just try and enforce it. I might have them wrong, but its still an amusing anecdote.

Point being, this may be a massive overreach of the not-even-enacted-yet SOPA, but by trying to include Yahoo, Google, and Bing, they've basically given license to all three to band together and completely ignore the order. Together, those three probably account for 99% of all web searches. If one ignores the order, the others would probably do so too, just to stay somewhat competitive. I'd love to see the shitstorm if the Justice Department tried to shut any one of them down for ignoring this.

You don't want gov't action, but you don't want private action either

when against your precious counterfeiters or pirates, do you? Those are the ONLY constants in your pieces, Mike. It's just near impossible to conclude that your endless legalistic quibbling -- basically that NO solution can be found in law -- isn't to actually support piracy and counterfeiting.

My opinion is that this judge sees a wrong and is trying to remedy it. (Not all remedies will pass later tests; even the Supreme Court is wrong on Citizens United and MANY others since Dred Scott, however, this looks reasonable.) Not coincidental or contradiction that he's also ruled correctly on Righthaven, simply points up that he DOES view these matters correctly (in other words, as I do... even though despise Chanel).

Our rules, our ways

I think the judge must think he's on the Supreme Court or something..or the World Court-ordering the disappearance of sites that aren't even in the US?
Good grief-it's like issuing parking tickets and towing citations for the entire world. All on the say so of a corporation which is having a hissy fit over trademark violations?

Shame on Chanel, too. They're obviously scavenging for the bottom in this one.

Good thing SOPA isn't law, yet. I'm afraid of what's going to happen if it does become law. Worse than this-the government will be able to do it.

Re: You don't want gov't action, but you don't want private action either

"basically that NO solution can be found in law "

Have you ever considered that perhaps the correct solution doesn't include the legal system or the government? Perhaps instead of using the law to beat the customers into submission, they make their own offerings so attractive as to render the pirate offerings obsolete? Then at least, once the pirate threat is gone, your not left with the restrictions you helped create, and can conduct business without a bunch of artificial road blocks....

First Amendment is so over...

It's not just speech and press on the internet, or in new media.

Recently, the New York Times reported on the case of a man facing prosecution for pamphleteering. In case you don't remember your history, political pamphleteering goes back to before the foundation of the republic.

In this reported case, the federal prosecutors don't like what the defendant's pamphlets advocated, and they don't think the defendant should get a jury trial.

Mr. Heicklen, who could face a six-month sentence if convicted, has asked for a jury trial. [The federal prosecutor], opposing that demand, cited as one reason Mr. Heicklen’s ardent stance...

It hope Google fights this. SOPA seemed to have awakened the sleeping giant, and they could do some real good here if they take the opportunity.

The total lack of evidence against most of the web sites is also disturbing. It looks like evidence was only presented against three web sites. The rest are presumed to be guilty because those three appeared guilty. It's like saying that some people who wear flannel shirts commit murder, so if you see someone with a flannel shirt who is carrying a gun they must also be murders.

I have to wonder how many of these sites were properly served so they would have an opportunity to defend themselves verses how many were accused, and have a default judgement entered against them because they didn't appear to a court hearing that hadn't been notified about.

Re: You don't want gov't action, but you don't want private action either

Re: Re: I would love to see Google ignore this

That's not what I'm saying. I'm pointing out that this order is ridiculous because there is no means to enforce it, nor is there any real incentive to, and in fact, there is actually MORE incentive to ignore it and do nothing.

Re: First Amendment is so over...

I expect Heicklin to win. Feds are desperate to shut this guy up all over his jury nullification advocacy. In this case, the authorities overplayed. The prosecutor's statements are obviously ridiculous. In fact, I am willing to bet Heicklin couldn't ask for a better present for Christmas. He never would have gotten so much attention for his cause. Disclaimer: I emphatically support the right of jury nullification.

Re: You don't want gov't action, but you don't want private action either

Alright Blue, I'm going to copy/paste exactly what I wrote in response to you yesterday. Why am I doing this? Because you obviously love being made to look like an idiot. You over and over again ask for solutions or b*tch that Mike offers none (in regards to piracy or you're guaranteed $100M sunk costs). I would like to point out yet again, Mike actually has offered solutions along with myself and others. Now, I'm trying to be nice here, but enough is enough. You're either a goddamn idiot, a f*cking troll, or just moronically and criminally ignorant/blind to anything you don't want to see. All 3 of those are bad either way. I'm thinking you're a combination of all 3.

Blue, I'm starting to get a good idea of the kind of person you are. You want people to do everything for you. You want to contribute nothing beyond "give me". You sound like more of a freetard than most of the people here accused of being that very thing.

So let's get this out of the way and put it as simply as possible, okay?

(Also, note: we do NOT appreciate your sarcasm in regards to your opening line /right/ nonsense)

There is a wrong way to fight piracy and a right way. SOPA/PIPA are the /wrong/ way (to put it in a format you might understand). Why are they the wrong way to go about doing that? If you need it explained to you after all the articles on exactly that and all the repetitive comments made by myself and others, you're a lost cause and not worth repeating it to again.

The /right/ way to fight piracy, and do so as is being done, is by narrowing SOPA/PIPA. Instead of using overly broad and ill defined terms, make them specific. That's pretty much what EVERYONE here has been saying, including Mike and most opponents of the bills. It's literally, not that hard to think of/do. I cannot make/put it any simpler than that.

That's the right way to fight it in regards to these bills.

Another way is, again I'm getting sick of repeating it, meet the customer's wants/needs. GASP! Yep. That f*cking simple. Ask them what they want, they'll tell you. Then work on providing that. Nothing to it. Netflix and iTunes and Spotify and Pandora and Steam manage to do just that. Provide the people with what they want. Movies/tv shows, music and games. Streamed or downloadable. In as hassle free a way as possible. (This means no sh*tty DRM. Or jumping through hoops of installing this or that just to get your product to work/play.) As cheaply and reasonably priced as possible. (Emphasis on "cheaply and reasonably priced"! No one is saying "free". Not myself, nor anyone else here. We're saying just be reasonable.) Whenever they want it. (Regional delays, etc. are unacceptable in this day and age.)

There. That's two ways to fight piracy. The former is the right way in accordance with new bills/laws. The latter is the right way in general. If the "criminals" and thieves can provide a better product than the "legal" alternative/providers, you have a serious problem on your hands. And it isn't the "illegal" product being offered by "pirates". It's YOU. [points finger at you] And your antiquated way of doing things.

Now if you'll excuse me, I'm going to go work on seeing if I can get someone to come up with a "better business model" that is guaranteed to get me back the $100M I want to sink into a movie. :P [walks off and then takes a quick peek back, sees you still here and sighs] "You and your false promises, Blue."

Re: Re: I would love to see Google ignore this

Re:

Google is a public company and good/evil has absolutely zero bearing on actual action. The only single thing that they do now as a goal is return shareholder value. You could look at it from the opposite perspective as well: If action will damage shareholder value: they will likely not partake in it.

Previously, as a private company, they had quite a bit more leeway to "act" upon items of significance politically or environmentally. This is no longer the case:period.

Re: You don't want gov't action, but you don't want private action either

I'm pretty sure that Mike has no problem with Chanel taking counterfeiters to court. In fact, I would bet that Mike *wants* Chanel to take them to court. Using existing legal frameworks is the best option, as opposed to creating new legal frameworks.

He also wants those people to have a chance to contest the chargers before their property is seized. You know, due process and all that.

Re:

Decreases the attractiveness of Online Business in the United States...

Rulings like this have a certain definitive chilling effect in long-term online business opportunity in the United States. Why would I possibly incorporate within the jurisdiction of a country that at a trial/whim can change my host, name resolution, or other online presence? It is likely going to be amusing when companies start to move beyond the United States as a starting platform for online business, legit or not. The risk is now too great to bother with incorporating here. Certainly alternate name resolution is a priority for the companies that wish to stay afloat long-term. The current system coming to fruition is too chaotic to rely on.

The startling thing is none of this does anything to decrease demand of the products. I am now much more aware of counterfeit goods online and where to acquire said goods than even just one year ago.

Hey everybody!!!!!! I propose a new strategy against Blue! Completely ignore him! Do not respond to him any more! I and plenty of others here have done it time after time after time.
Let's just pretend he doesn't exist. There's nothing to be gained anymore from pointing out the obvious to him.

On the other hand...

Chanel could be gearing up for an offering like Versace, where they will be providing cheaper copies of their high end material. However, they feel they must first eliminate the competition through means that effectively wipe them out of a chosen market.

Its a lot easier to compete when you can change the rules at your whim.

Re: Re:

But it does have potential to affect shareholder value. Giving people virtually unfettered ability to force de-linking web sites makes Google less useful. The current case only relates to a small percentage of the sites that Google indexes, but if this becomes the precident Google could be forced to ignore a broad swath of the Internet.

There are other search engines http://yacy.net/en/ that are at least in theory more resistant to government interference. If Google has to censor a large number of web sites then things like YaCy become more attractive, and that hits directly at shareholder interests.

Sooo... the rest of the world simply "jumps ship" then?

The US begins "cracking down" on these horrible sites with a broad sweeping hand without any real valid process. The US becomes its own walled off internet nation. The rest of the world runs its own ICAAN and completely ignores the one incorporated in the US.

Somehow I don't see this as too far fetched or unrealistic. If you're in the US... welcome to your new padded-walled garden. *shrug*

Re: Re: Re: I would love to see Google ignore this

Oh, Teddy was badass alright. He's the only one to face a machine gun up on a hill with just a sword (let's ignore WWII for a second...) as well as muscle his way through polio, a crippling disease for his time.

But Andrew Jackson had the first pleasure of a man to try to assassinate him, to which he beat the guy repeatedly with his cane. His aides had to stop him from killing the man.

Re: Re: Re: Re: I would love to see Google ignore this

It's worth noting, the man who tried to assassinate Jackson used to pistols in the attempt. Both DID NOT fire. At which point "Ol' Hickory" (as Jackson was known) lost his temper and then proceeded to beat the assassin. His aides did have to get him off the guy.

Afterwards, the pistols were both inspected and it was determined they were both in perfect working order. No explanation was found for why they did not fire. (Some of course attribute it to the fact that even the pistols/rounds were afraid of Andrew Jackson. The guy did indeed live through more duels than any other President and in fact upon his deathbed, his final words were that he regretted not having had the opportunity to kill, in a duel I believe, the guy who was his Vice President.)

Re:

Re: Re: First Amendment is so over...

While I support jury nullification and I support his right to inform others about jury nullification, one thing I found somewhat troubling was the following.

"“strongly suggests that jurors lie to judges in order to avoid being excused from a panel,”"

For some reason, I don't find it that hard to believe that the brochures did suggest such a thing and for someone to encourages dishonesty (or for a system to encourage dishonesty by otherwise discriminating against jurors for bad reasons that could yield a non-representative jury) doesn't seem like something we should support.

Teddy Roosevelt

You may be thinking of the Great White Fleet, which TR surreptitiously sent to circumnavigate the globe in a "friendly" show of naval force to keep the Japanese from getting too cocky.

Senator Eugene Hale from Maine, chairman of the Naval Appropriations Committee, threatened to withhold money for the cruise. But this didn't bother Roosevelt, who replied in his typically brusque and forthright fashion that he already had the money and dared Congress to "try and get it back."

Re:

"Chanel" Sellers

Why dont those sites offer the bags with 'personalized' plates? Hmm, I wonder what'll be the most requested? In their policy (if those sites even have one) can state that some requests cannot be fulfilled.

Re: You don't want gov't action, but you don't want private action either

Mike is too nice, too diplomatic, and dances around the solution here.

The solution, my friend, is for the copyright industries to leave private property that is not theirs - like the Internet - alone.

When it comes down to rights, the Internet simply does not care about the copyright industries, whether they live or die. If they leave the private property that is the Internet alone (or use it to make money through trade, not force), then they are no business of ours and we ignore them, perhaps even buy some of their stuff sometimes if it pleases us.

If they attack and try to control and destroy the structure and free order of the Internet to eke the final bloody cent out of their government-granted monopolies, we retaliate against them with the exact same aim - their complete and utter destruction - just the targets reversed.